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Posts from May 2018.

On May 22, 2018, the U.S. House of Representatives approved a package of financial industry regulation changes that roll back measures implemented under the 2010 Dodd-Frank Act.  The bill, a version of which passed the Senate earlier this year and has been backed by the Trump Administration, passed by a 258-159 vote. Once signed into law, the bill will raise the capital requirement threshold that subjects financial institutions to stricter capital and planning requirements from $50 billion to $250 billion in assets.  In doing so, the legislation will leave fewer than ten banks as systematically important – or “Too Big To Fail” -- and subject to stress tests and the “enhanced prudential standards” regarding liquidity, risk management, and capital requirements that were enacted in the wake of the financial crisis.  The legislation allows the Federal Reserve to impose additional standards on financial institutions with $100 billion in assets.   Financial institutions with $50 billion in assets will remain subject to other rules, including the Fed’s annual Comprehensive Capital Analysis and Review (CCAR).

On May 15, 2018, the Third Circuit Court of Appeals issued a precedential ruling in which it held that the time limit within which to challenge debt collection practices under the Fair Debt Collection Practices Act (“FDCPA”) is not tolled by the discovery rule.  The Court, in Kevin Rotkiske v. Paul Klemm, et al., case No. 16-1668, disagreed with United States Courts of Appeals for the Fourth and Ninth Circuits, which have held that the time begins to run not when the violation occurs, but when it is discovered.

As practitioners, we have an obligation to our clients to continually assess the strengths and weaknesses of our files as new facts are learned and the applicable law changes.  We must frequently ask ourselves, “what is the likelihood of success of my claims or my defenses?” 

During these case assessments, we may determine that a case is ripe for mediation.  Mediation is a non-binding method of alternative dispute resolution, or ADR.  While clients may naturally be focused on having their day in court, this means that they must put their case in the hands of a judge or jury to hear the evidence, apply the law, and make a determination on the merits.  That can be risky, as the smallest detail can significantly change the outcome of a case.  How badly does your client want to play the odds for his or her day in court?

On April 30, 2018, the California Supreme Court adopted a test for independent contractor that generally restricts the classification of independent contractors. In a ruling in Dynamex Operations West, Inc. v. Superior Court, S222732, 2018 WL 1999120 (Cal. April 30, 2018), the Court adopted a test that assumes all workers are employees unless a hiring company can establish each of the following three factors, commonly known as the “ABC” test:

  1. that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  2. that the worker performs work that is outside the usual course of the hiring entity's business; and
  3. that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
SEC Launches New Search Tool to Identify Individuals with Enforcement Records While the CFPB Considers Ending Public Access to Complaints

On May 2, 2018, the Securities and Exchange Commission went live with an additional online search tool known as the SEC Action Lookup for Individuals, or SALI.  SALI is intended to help potential investors identify registered and unregistered individuals who have settled, defaulted, or contested an enforcement action brought by the SEC where a final judgment or order was entered against them. 

On April 24, 2018, in SAS Institute Inc. v. Iancu, Director, United States Patent and Trademark Office, [Docket # 16-969], , the United States Supreme Court held that “[w]hen the Patent Office institutes an inter partes review it must decide the patentability of all of the claims the petitioner has challenged.”  The Court relied on the plain language of 35 U.S.C. § 318, which states that “[i]f . . . review is instituted and not dismissed,” the Patent Trial and Appeal Board “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.”  The Court further held that the word “shall” imposes a nondiscretionary duty to address every claim the petitioner has challenged, and that “any” means “every.”  In reliance on the plain language of the statute, the Court held that “[w]here a statute’s language carries a plain meaning, the duty of an administrative agency is to follow its commands as written, not to supplant its command with others it may prefer.”

On April 24, 2018, in a widely anticipated decision, the United States Supreme Court held in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, et al., [Docket # 16-712], that the inter partes review process instituted under the 2011 America Invents Act – whereby private parties can challenge issued patent claims in an adversarial process before the Patent Office that mimics civil litigation – is constitutional. 

On April 9, 2018, the Ninth Circuit Court of Appeals ruled en banc that prior salary alone cannot be used to justify payment of lower wages to a female employee.  The case, Rizo v. Yovino, 887 F.3d 453, involved a female math consultant hired by the Fresno County Office of Education (“Fresno”) who alleged Fresno paid her less than comparable male employees for the same work. 


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